Saturday, February 27, 2010

Every lawyer has the duty under RPC 8.3 to report professional misconduct that "raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects".

U.S. Deputy Attorney General David Margolis rejected the finding of the internal Office of Professional Responsibility that John Yoo while at the Office of Legal Counsel intentionally violated his "duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" with respect to five documents" Yoo penned which sanctioned waterboarding and other coercive actions asserted to be methods of interrogation. (reports HERE, the "torture memos" HERE)

Disturbed by the decision, Congressman Jerrold Nadler (D-NY), a lawyer and member of the House Judiciary Committee,announced yesterday that he is referring the Yoo matter to state disciplinary authorities. He issued this cri de coeur:

[I]t is imperative that the Department of Justice ensure that a special counsel fully investigates commission of torture, to follow the trail wherever it goes, and, if warranted, to prosecute accordingly. There is no legal or moral reason to insulate those who authorized the torture of detainees. High-ranking officials and lawyers who distort legal reasoning to justify or authorize war crimes can, and should, be held legally accountable. Because the ban on torture is absolute, we have a legal obligation to investigate torture and all of those who may have been party to its use.”

The controversy centers on the Margolis decision that Justice Department internal standards require "identification of a known, unambiguous obligation (and) a finding... that the obligation unambiguously apply". That standard - `unambiguous' obligations that `unambiguously' apply - is foreign to the usual rules of attorney misconduct.

Though some states require proof by a preponderance of the evidence, and others by clear and convincing evidence, none employs the dual finding of unambiguous standards of conduct and unambiguous violation. Behind this debate lies the question of how far the lawyers in the Justice Department's Office of Legal Counsel (OLC) can or should go to do the bidding of the President whom they advise.

Although he sharply criticized the former OLC lawyer Margolis concluded that Yoo's actions did not satisfy the lack of ambiguity test. Saying that Yoo had used "poor judgment" but did not intentionally violate clear standards, Margolis explained:

John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.

State disciplinary authorities are bound neither by U.S. Justice Department standards nor by findings that are themselves the subject of bitter division within the Department. But those who review Nadler's referral and complaints lodged by others against Yoo (here) will find it challenging to persuade the authorities to enter the hornets nest.

Although RPC 8.4 does not require proof of intent or recklessness, complainants must show that Yoo violated the Rules of Professional Conduct. This will require an expansive interpretation of RPC 1.1 - Competence which demands of lawyers that "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

Also at issue is RPC 2.1 which requires "independent professional judgment and candid advice", which may take into account "not only law" but also relevant "moral, economic, social and political factors".

One-sidedness and stretching a point to give support to one's supervisor's policy preferences are, alas, vices for which the bar and disciplinary authorities have often shown broad tolerance.

Friday, February 26, 2010

There's no one who has said it better. If you want to see the back-up for Sen. Durbin's rebuttal of the urban legend The Medical Malpractice Myth, check out UPenn Law Professor and insurance expert Tom Baker in his book of that name, published by University of Chicago Press. Read an excerpt HERE

Thursday, February 25, 2010

There is little more dramatic than comparing the welfare of those who live in social democracies with those like us who live under the yoke of those who believe that government is best which governs least.

It's not choice we are seeking to advance - it's health care.

The graph shows unmet care defined as “Did not get medical care, missed medical test, treatment or follow-up, did not fill prescription or missed doses.” It’s striking that not only does the US do much worse with regard to poor people, we do much worse than many countries with regard to richer than average people.

Today is the day of the White House Bipartisan Health Care Summit. The debate is pitched to the political center. No talk of "universal coverage", health care as a human right, expansion of Medicaid, or jettisoned ideas like dropping the Medicare eligibility age to 55.

Big vision is out. Achievable is in as we are still dominated by anti-government sentiment in our political climate, as we have been since Ronald Reagan was elected in 1980. Skepticism is easier than faith, and individualism remains more comforting than, shall we say, socialism, for most Americans.

The Democratic plan's talking points center on a populist anti-insurance company appeal:

* Makes insurance more affordable

* Makes the health insurance market competitive

* Makes insurance companies accountable

* Reduces the deficit

* Will end insurance company abuses

The Republican Talking Points center on individual choice:

Number one: let families and businesses buy health insurance across state lines.

Number two: allow individuals, small businesses, and trade associations to pool together and acquire health insurance at lower prices, the same way large corporations and labor unions do.

Number three: give states the tools to create their own innovative reforms that lower health care costs.

Number four: end junk lawsuits that contribute to higher health care costs by increasing the number of tests and procedures that physicians sometimes order not because they think it's good medicine, but because they are afraid of being sued.

The GOP alternative (which is really a set of talking points along the lines brilliantly developed by Republican strategist Frank Luntz HERE) includes many of their favorites reaching back to the 1994 Contract with America.

Prominent among the proposals is The Medical Malpractice Myth, an urban legend decisively rebutted by UPenn Law Professor and insurance expert Tom Baker in his book of that name, published by University of Chicago Press. Read an excerpt HERE

The junk lawsuits argument is also a distraction from two key drivers of medical costs fee for service billing, and drug and medical device company over-selling such as the massive and unnecessary prescription of fosamax to millions of middle-aged women. Merck executed a brilliant marketing strategy, practically created the diagnosis of osteopenia, the technology to test for bone density, and drove the passage of a bill that mandates Medicare coverage, a story dramatically laid out a few weeks ago on NPR HERE.

Saturday, February 20, 2010

Here is the webpageof the House Judiciary Committee which has links to the Office of Prfessional Responsibility Report which concludes that John Yoo committed Professional Misconduct and the memo by the Deputy Assistant Attorney General overruling that conclusion.

Rep. John Conyers, Committte Chairman, wrote:

"For years, those who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel," Conyers said. "The materials released today make plain that those memos were leglly flawed and fundamentally unsound, and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear."

"The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch," Conyers continued. "The materials released today make clear that the lawyers who wrote the torture memos did not live up that tradition. While the department ultimately concluded that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard than that, as all Americans should.

"Given the serious nature of the issues raised in this report, the committee intends to hold hearings on these matters in the very near future."

There is a tsunami of commentary, of course, but as an entry points HERE is John Steele at Legal Ethics Forum, and HERE is Brian Tamanaha at Balkinization.

The Republican Party's strategy of obstruction - to render the Obama Administration ineffective - is pervasive as this weekend's CPAC convention assaults on "progressivism" showed. The "enemies list" strategy began with the Nixon Administration but it gained full force with the Reagan era conservative ideologists who first bonded in the Goldwaterite Young Americans for Freedom. YAF'ers anathematized the liberal wing of the Republican Party. The Rockefeller wing was ridiculed and denounced as soft on liberalism, the way soft on communism had once served as a political trump card. This combined with the successful "southern strategy" which brought the segregationist base into the party of Lincoln to create the current hard-wired to the right political culture.

There were survivors - like Thomas Kean and Christine Todd Whitman in New Jersey but neither is a player now. Whitman made excellent judicial choices but got elected by surfing on an anti-tax wave. Her 30% income tax cut began an era of not contributing to the state's pension system, and left New Jerseyans trapped with high property taxes and an extraordinarily inefficient home-rule system with over 400 municipalities and no strong cities.

But that is minor carping about local problems compared to the current moment. Here is a snapshot of the obstruction of President Obama's judicial nominees, prepared by the Alliance for Justice.

The Senate was in recess this week.

Next Wednesday, the Senate Judiciary Committee will hold a nominations hearing, but the nominees who will be considered have not yet been announced. Next Thursday, the Senate Judiciary Committee will hold an Executive Session, but no judicial nominees have yet to be posted on the committee schedule.

There are currently seven circuit court nominees awaiting a final confirmation vote:

• Jane Stranch and Thomas Vanaskie were nominated on August 6, 2009: pending 197 days
• Barbara Keenan was nominated on September 14, 2009: pending 158 days
• Denny Chin was nominated on October 6, 2009: pending 136 days
• Albert Diaz and James Wynn were nominated on November 4, 2009: pending 107 days

Saturday, February 13, 2010

"The idea is to prevent . . . the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public. It strikes at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government."

Elihu Root (above left) , at the New York State Constitutional Convention, 1894

The Editorial Board of the New Jersey Law Journal has sharply rebuked the United States Supreme Court decision in Citizens United v. Federal Election Commission, which declared that corporations have the same right to spend money on electioneering as do natural persons. The Board embraces the observation of senior Justice John Paul Stevens who spoke from the Supreme Court bench in dissent:

"The Court's opinion is a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporation electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money and politics."

Stevens was joined by Justices Breyer, Ginsburg, and Sotomayor.

Explaining its own view the Law Journal Editorial Board wrote:

The U.S. Supreme Court recently overruled two recent precedents to invalidate federal-election-law preclusion of direct corporate expenditures in support or in opposition of candidates, essentially because the 5-4 majority in Citizens United v. FEC , refused to draw the long-established distinction between individuals and corporations.

Contrary to the fundamental purpose of the First Amendment, this sweeping decision will likely undermine democracy, not bolster it.

The Court ignored the obvious differences between individuals and corporations that affect their participation in elections. Corporations cannot vote or "speak" and possess no conscience, feelings, thoughts, beliefs or desires. They have perpetual life, enjoy separation of ownership and control, are given favorable treatment for the accumulation and distribution of assets, may be foreign-controlled and can acquire greater wealth than individuals.

Corporations are single-track vehicles to profit from the sale of goods and services. They finance Democrats, Republicans, conservatives, liberals and even all of the above, so long as their profits are enhanced. Individuals may be persuaded to support political candidates for the good of the country; corporations are unlikely to be so persuaded.

The Court's ruling overrides laws that have been on the books for more than 100 years, as well as decades of campaign finance jurisprudence, which have recognized that society's interest in avoiding corruption and the appearance of corruption justifies regulating corporate expenditures in support or opposition of candidates.

The Board observes, as did President Obama in the State of the Union address, that the court has uprooted 100 years of efforts to regulate corporations political activity. So intense was the sentiment a century ago that President Theodore Roosevelt declared in his December 1905 message to Congress, a year after his election

"All contributions by corporations to any political committee or for any political purpose should be forbidden by law."

105 years later the United States Supreme Court has declared government may not do what Roosevelt sought. Corporations, the Court decided, just like natural persons, are free to speak whenever they want by spending money to support or oppose a candidate for office. - GWC

Criminal, soldier, or unlawful combatant? That trichotomy frames the current hyperbolic and fear-mongering debate about the “Christmas Day bomber” and his “Miranda rights”. The attack from the right is that treating prisoners like Umar Farouk Adbdulmutallab as criminals is being “soft on terror”. We are “at war” we are often told.The “we are at war” stance was problematic from the first because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war “must at all times be protected, particularly against acts of violence or intimidation”, and in Article 14 are said to be ‘entitled in all circumstances to respect for their persons and honor”.

Therefore when the Bush/Cheney administration formulated its policy they declared that “terrorists” are not prisoners of war but “unlawful combatants” not entitled to review by any court of the United States. And, impliedly, not entitled to “respect for their persons and honor”. That stance led to the travesty at the Abu Ghraib prison, international outrage over the conditions of confinement at Guantanamo, and finally, repudiation by the courts of the United States, and renunciation of the policy by the incoming Obama administration.

We are told that treating as a criminal the apparent perpetrator of the failed airplane bomb plot is a sign of weakness, though nearly 200 accused of terrorist acts were so treated in the Bush/Cheney years. Abdulmutallab, arrested at the Detroit airport, is in jail, facing trial, and in the custody of the FBI presumably received the customary warnings known to everyone who has watched a single episode of Law & Order or NY PD Blue.

The strongest popular appeal is that the accused has been given rights to which he is not entitled - to silence, and to counsel. The suggestion is that telling Abdulmutallab he had the right to remain silent and to counsel deprived us of information he would otherwise have given. There is of course no evidence for such a statement. One can assume that such a commando would expect in the event of capture to be beaten, and to have “hardened” himself for such and event.

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.

Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.

One of the strengths of the right is their smug dismissiveness. The newt Gingrich dared to engage in light sword combat with Jon Stewart. Newt blithely asserted that Obama is a radical, who doesn't understand that terrorists are soldiers? not ordinary criminals, and failed to understand the absurdity of trying KSM, etc al in New York City which they had attacked,

But Stewart set Gingrich back on his haunches when he announced that as a lower Manhattan resident he wants to see the attackers tried here, and to show ur system at work. (As I wrote "I want to be a KSM juror"

And he handles Gingrich with aplomb on the economy, the deficit and many other issues.

Saturday, February 6, 2010

"There's no way the country can go Left because of the Senate", says Tom Geoghan, labor lawyer, writer, and political gadfly. In an audio interview with George Kenney at Electric Politics, Geoghan lays out the structural obstacles to change which are the product of the Senate's super-majority rules - commonly (if inadequately) known as the filibuster. The 60 vote rule - as Richard Shelby is demonstrating - empowers every Senator to obstruct even the most elementary processes - such as confirmation of presidential nominees. In another manifestation it permits 41 Senators to obstruct any legislation. HERE is the audio. And HERE is an editorial by Geoghan and the editors of The Nation.

Thursday, February 4, 2010

Jon Stewart is becoming Edward R. Murrow: the most serious independent television journalist of the moment. He is armed with a comic persona, razor sharp wit, and the analytic skills of a top flight political commentator.

If the PBS News Hour wants to come out of its torpor they should replace Mark Shields with Jon Stewart, and David Brooks with Andrew Sullivan.